CHAPTER – 4

CONSTITUTIONAL AND STATUTORY PROVISIONS

RELATING TO CAPITAL PUNISHMENT

Death penalty or Capital punishment is the ultimate punishment that is imposed by

any society for any crime committed against the law of the land. In the primitive
society the offences were punished by brutal and excessive methods of execution. But
with the advent of civilized countries the punishment was governed by a predefined
law of the land. This chapter deals with the constitutional and statutory provisions
related to death penalty in all the four subject countries of the research which can be
studied under the following headings:
4.1 Constitutional& Statutory Provision related to Death penalty in USA
4.2 Constitutional& Statutory Provision related to Death penalty in UK
4.3 Constitutional & Statutory Provision related to Death penalty in India
4.4 Constitutional& Statutory Provision related to Death penalty in Saudi
Arabia

To begin with USA where the Government is authorized to award capital punishment
for a predefined list of offences in the laws let us study as follows

4.1 Constitutional& Statutory Provision related to Death penalty in USA

The death penalty law in USA can be read elaborately under four heads mainly 108.
4.1.1 The Substantial Laws
4.1.2 The Procedural Laws
4.1.3 The Case Laws
4.1.4 The Constitutional Laws

4.1.1 The Substantial Laws

The laws created by the state legislatures and the US Congress which define certain
acts as a crime for which a punishment is prescribed such as death penalty or any
other punishment. In USA there are three categories of jurisdictions that are

108
Robinson Mathew B Death Nation: The Experts explain American Capital Punishment Edu. 2007.
p.52.

72
authorized to award death penalty namely 50 states, the federal government, US
military 109.

The Statutory Law defines the offences punishable by the state. Most of the states and
the federal government and the US Military has almost similar offences that are
punished by death penalty which can be short listed as follows.

Aggravated Murder which includes felony, murder 110 or any other form of murder
committed during commission of a crime such as child murder, murder of an on duty
police officer, murder of a rape victim.

Some other crimes are there which are said to be committed against the state like
treason, espionage and drugs trafficking in large scale and are punished by death
penalty.

To discuss who are eligible for death penalty to be awarded various case laws have
discussed and finally a list can be prepared. In the leading case Ford V
Wainwrights 111, the US Supreme court decided that a legally insane person cannot be
awarded with death penalty. Legally insane person is different from mental illness and
still mentally ill people are executed in USA.

Talking about the appropriate age of awarding death penalty. The Supreme court of
USA had given different verdicts from Thompson v. Oklahama 112 in 1988 where the
Supreme Court decide that a person can be punished with death penalty at the age of
16 only. Later this decision was overruled. In the case of Stanford v. Kentucky 113 in
1989 the age for execution for those who committed the offences at the age of 17
years was said to be constitutional.

Finally in 2004 in Cooper v. Simon 114 the honorable Supreme Court decided that the
age of the accused should be 18 years at the time when the offence is committed so
that the death penalty awarded can be executed and can’t be called unconstitutional

109
Robinson Mathew B Death Nation: The Experts explain American Capital Punishment Edu. 2007
110
Enmund v. Florida, 458 U.S. 782 (1982)
111
Ford v. Wainwright, 477 U.S. 399 (1986)
112
487 U.S. 815 (1988)
113
492 U.S. 361 (1989)
114
No. 03-633 (2004)

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according to the constitution of USA. This decision was based on those evolving
standards of decency that were implicit in the 8th Amendment of US constitution.

The question of mentally retarded being executed were finally decided on the basis of
standard of decency evolved in the 8th constitutional amendment in the case of Atkins
v. Virginia 115 in 2002 and now even the mentally retarded offenders who meet the
required legal standards of certain IQ are not allowed to be executed. Mandatory
death Penalty has been rejected in the leading cases of Roberts v. Lousiana in 1977
and later in Sunner v. Shuman 116 in 1987.

4.1.2 The procedural laws

The procedure followed by the U.S. Supreme court prior to 1968 which was
effectively followed in the case of Powell v. Alabama 117 was said to be against the
constitutional values of American constitution and it was said that none of the accuse
were provided with any defense attorney nor they were given any rights to effective
assistance which were an essential requirement of the 14th constitutional amendment.
There have been many cases in the history of the US Supreme Court that are a
question mark on the believe of the jury to be opposed to death penalty and
collectively it has been accepted that the due process needs to be accepted without
considering the personal views of the judges. The sentencing had been a very
interesting issue in the process of justice delivery and there are many precedence
already where the punishment was for the lesser crimes when the evidences supported
the same rather than awarding life imprisonment or death penalty 118. Fairness in the
capital punishment process has been the key requirement and every opportunity to
prove one’s innocence should be provided to the accused.

Race could never be considered as any element by the juries. There have been great
deal of inconsistencies among the inside accounts and the private papers of justices of
the Supreme Court while dealing with Death Penalty. There are sever inconsistencies
in the process adopted by the supreme court may that be the preliminary opinion or

115
536 U.S. 304 (2002)
116
483 U.S. 66 (1987)
117
287 U.S. 45 (1932)
118
Bohm (2003), p.21.

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the final opinion and most surprising this inconsistency is visible all along the
timeline 119.

4.1.3 The Case Laws

There have been 4 different most imminent cases in the history of US Supreme court
that have decided the inconsistently of the Supreme Court decisions. These 4 cases are
Furman v. Georgia 120 (1972), Gregg v. Georgia 121 (1976), Woodson v. North
Corolia 122 (1976).

McClleskey v. Kamp 123 (1987). The decision of these 4 cases derived at 3 types of
consistency 124.
1. The decision of the honorable court were generally contradictory to the earlier
decision given by the same courts in previous cases.
2. Contradiction written opinion of earlier decided cases.
3. Giving decisions which appear to violate presidents and rule of law.

The facts of the above given cases are discussed in the next chapter.

4.1.4 The Constitutional Law

The constitution of America seems to be ambiguous in nature 125. It has been a very
difficult job of the justice to interpret the constitution literally making logical
inferences in order to make enforcing ‘slar decisis’ while delivering a decision.
Various amendments have been made to make the constitutional process for death
penalty to be fair and just for all. The fifth amendment of the constitution provided for
jury trial and prohibited the deprivation of life without due process of law. The
fourteenth amendment was also enacted to give support to the provisions of eighth
amendment by enforcing prohibition of depriving life without due process of law by
the state.

119
Constitutional law for a changing America (3rded.) Washington, DC
120
America’s Experiment with Capital Punishment: reflection on the past, present, future of the
ultimate penal sanction (2nd ed.) durham, NC: Carolina Academic Press
121
America’s Experiment with Capital Punishment: reflection on the past, present, future of the
ultimate penal sanction (2nd ed.) durham, NC: Carolina Academic Press
122
America’s Experiment with Capital Punishment: reflection on the past, present, future of the
ultimate penal sanction (2nd ed.) durham, NC: Carolina Academic Press
123
America’s Experiment with Capital Punishment: reflection on the past, present, future of the
ultimate penal sanction (2nd ed.) durham, NC: Carolina Academic Press
124
Robinson Mathew B Death Nation: The Experts explain American Capital Punishment Edu. 2007
125
Lieberman (1992), p.12.

75
The eight amendment confers prohibition of cruel and unusual punishment and
fourteenth amendment determines the outcome of constitutional appeals against the
death penalty 126 both these amendments are the backbone of the constitution of USA.

4.2 Constitutional& Statutory Provision related to Death penalty in UK

The United Kingdom does not have any one specified document which can be called
as a constitution of UK. The constitution of United Kingdom or otherwise can be
called as the British Constitution comprises of the laws and the principles which
actually make up the political scenario of the country. The British constitution is an
unwritten or can be called as an uncodified document 127, which basically comprises
from 4 sources 128namely:
(1) Statute laws which includes the laws passed by the legislature
(2) Common law which comprises of all the laws established through the
judgments of courts.
(3) Parliamentary conventions 129.
(4) The work of the authorities.

The collective interpretation of all the above 4 sources lead to a similar governance as
done by a written or codified constitution and fully governs the relationship between
the state and the individuals and also directs and controls the functioning executive,
the legislature and the judiciary similarly as a codified constitution does. The
constitutional and statutory provisions related to death penalty can be studied under
two heads namely
4.2.1 Statutory laws
4.2.2 The work of the authorities on death penalty
To begin we can start with the legislative provisions related to the death penalty
which although have become the history now as death penalty is no more in use in
UK.

126
Steiker & steiker (2003), p.55.
127
H Barnett, Constitutional and Administrative Law (5th edn Cavendish 2005)
128
Series paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament
UK
129
There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one
being that in law the Parliament in Westminster (as opposed to regional parliaments in Scotland
etc) is sovereign in the sense of being the supreme legislative body.

76
4.2.1 Statutory laws
Parliamentary sovereignty has been the most essential key feature of the British
legislative constitution, the laws or statutes that are passed by the parliament of UK
are the primary, highest & final sources of the law. The Parliament can therefore be
changed by simply passing new statutes as an Act in the Parliament. One another
imported core principle of the English constitute is the Principle of Rule of law as
propounded by the eminent legal academician A.V Dicey in his legendry work of
1885 “Introduction to the study of law of constitution” this book has been considered
and recognized as an authority of work by the British parliament on the matters
related to constitution.

The History of UK had seen a long era of capital punishment as discussed in the
earlier chapter. It is eminent to discuss the provision of capital punishment in Britain
which reached its highest number of crimes punished by death penalty during the 18th
Century. The number of crimes punishable by death penalty reached to a height of
nearly 220 in 1776.

The offences included in this list were forgery, stealing, robbing, cutting down trees
etc. which were having a range of offences from serious to the trivial to the weird and
hence the system of laws which had hundreds of offences punishable by death penalty
is often known as the ‘bloody code’ 130. The bloody code acted as a threat to those who
thought of committing crime and especially defending the property. And a great
number of Hangings in public was done for the convicts of these crimes and the only
purpose was to generate deterrence among other so that they follow law of the land.
To make the death sentence the biggest fear for criminals the convict was executed
immediately on the next day or to the most on the next following Monday making the
punishment awarding irreversible conviction and irrevocable punishment which
became a major reason for abolition of this punishment form later in the 19th Century.

4.2.2 The work of the authorities on death penalty

The process of abolition of death penalty began as a revolution under various leaders
of which sir Samuel Romilly who was an MP was the principle champion for getting
off the efforts to start the move of punishment for decapitating minor crimes. He was

130
Julian B “The Death Penalty Project 2015”

77
successful in lifting capital punishment from minor offences like stealing and
introduced transportation as an alternative punishment.

After the death of Romilly in 1818 Sir James Mackinstosh took over the responsibility
of abolishing death penalty with his efforts the ‘Judgment of Death Act 1823’ 131 was
passed which abolished the mandatory death penalty and gave the discretion to the
judges to immediately commute the death penalty to transportation or imprisonment
for less serious crimes then treason and murder. This could be marked as the
beginning of abolition of Death Penalty as in 1832. The Punishment of Death etc.
act 132 reduced number of capital crimes to just 60. Finally in 1861 this number was
reduced to just 4 by the Criminal Law Consolidation Act 1861 133. These four crimes
were murder, high treason, piracy with violence and arson in the dockyard and finally
murder was left as the only capital crime for which a criminal could be subjected to
death as punishment in the peace times.

The last man who was publicity hanged was Michael Barrett who was hanged on 26
May 1868 in England 134. Only after three days of Barrett’s execution the parliament
135
passed the Capital Punishment Amendment Act 1868 which restricted the
execution in public now the execution were to be carried out only within the four
walls of prisons 136.

It was not that no cases of execution were passed or heard after passing of the Act of
1868 for offences other than murder but they were condemned and as 20th Century
saw many imposition of restriction on use of death penalty such as the Children Act
1908, Children and Young Person Act 1933 under the provisions of both these acts
death penalty for youth below 16 years earlier & 18 years finally was restricted 137.
The most important in the series was the Homicide Act 1957 138 which was the result
of report of Royal commission on capital punishment which finally decided the new
offence of capital murder liable for awarding death penalty. Rest all other murders

131
4 Geo 4 c 48
132
2 & 3 Geo 4 c 62
133
24 & 25 Vict. cc. 94 – 100
134
Pratt J. , Punishment and civilization: penal tolerance and intolerance in modern society, (Sage,
2002), Chapter 2
135
31 & 32 Vict. c. 24
136
(Parliamentary Papers. Session 1866. vol. 21)
137
Julian B “The Death Penalty Project 2015”
138
5 & 6 Eliz.2 c.11

78
were to be non-capital murders and could be given mandatory sentence of life
imprisonment.

Section 5 of the Homicide Act 1957 defined the various circumstances when a murder
was included in the category of capital murder i.e. the offender could be punished
with death penalty.
Sec 5 (1) (a) “Murder in the course of furtherance of theft”.
Sec 5(1) (b) “Murder by shooting or by causing an explosion”.
Sec 5 (1) (c) “Murder in the course or for the purpose of resisting, avoiding or
preventing a lawful arrest or of effecting or assisting an escape or rescue from legal
custody”.
Sect 5 (1) (d) “Murder of police officer acting in the execution of his duty or of a
person assisting a police officer so acting”.
Sec 15 (1) (e)“Murder of a prison officer acting in the execution of his duty or of a
person assisting prison officer so acting by a person who was a prisoner at a time
when he did or was a party to the murder".

In all the above five conditions the person was liable for death penalty along with it 2
more clauses of the same act section 5 (2) clarified the concept of trigger man
provision which means the person by whose own act the death is caused would be
liable actually for the death penalty 139. Section 6 provided for death penalty for repeat
offenders of murder.

There was a long struggling phase in United Kingdom when there were continuous
efforts to pass a bill to abolish death penalty. But finally the event of 3 very famous
cases that resulted in execution in 1950s to be precise the cases of Timothy Evans in
1950, Derak Bentley in 1953 and Ruth Elis in 1955. These three cases had different
facts and different circumstance but together they made the case for abolition of death
penalty in UK on moral grounds.

These cases are discussed in the next chapter in detail. After a long struggle by the
people and the leaders of political parties. The general elections of 13 October 1964
was won by the labour party and then came the end of the wait for final abolition of
Death penalty. Sydney Silverman in 1964 introduced The Murder (Abolition of Death

139
Daley and Montique v. The Queen [1997] UKPC 58

79
Penalty) Bill as a private member bill with government support 140 . This bill was
finally passed after a long debate stating the good and bad points of the act. Murder
(Abolition of the Death Penalty) Act 1965 came finally into effect on 9 November
1965 141.

Since this day the death penalty was suspended for capital murder in England,
Scotland and Whales for a period of 5 years initially. Immediately the death sentence
of 6 men who were punished with death penalty were reprieved of their
punishment. 142 After the period of these five years of successfully no executions in 16
Dec 1969 the Death Penalty abolition Act was confirmed and Death Penalty for
capital murder was finally abolished Death penalty for Arson in the Royal Dockyards
was abolished by Criminal Damage Act 1971 143.

The final abolition of Death penalty for all crimes in United Kingdom was done in
1998 with the enactment of Crime and Disorder Act 1998 144 and the Human Rights
Act 1998 145. The biggest reason for United Kingdom to not reintroduce death penalty
is the signing of protocol 6 and protocol 13 of European Convention on Human
Rights (ECHR).

Anthony Teore was the last man to be penalized to death in UK or its colonies. He
was convicted at Marx Court of General Goal Delivery in Douglas for an offence of
murder through a contract in 1992, his case was retried and ultimately sentenced to
life imprisonment in 1994 146.

During 1970 & 1990 there have been many attempts to reintroduce death penalty in
UK. To be precise between 1964 to 1994 there have been 13 attempts to reintroduce
death penalty but rejected each time 147. Presently no crime is punished with death
penalty in UK 148.

140
The Parliamentary history of the bill is as follows (references in square brackets are to Hansard
volumes in HC Debates and HL Debates respectively) House of Commons
141
The death penalty for murder in Northern Ireland was abolished in 1973 by the Northern Ireland
(Emergency Provisions) Act 1973, s 1(1)
142
http://www.capitalpunishmentuk.org/abolish.html
143
Julian B “The Death Penalty Project 2015”
144
Treason and piracy
145
Military offences
146
Julian B “The Death Penalty Project 2015”
147
Hansard, 21 February 1994, col 39
148
Amnesty International Report

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4.3 Constitutional & Statutory Provision related to Death penalty in India
The Constitutional and Statutory Provision related to Death penalty in India can be
mainly studied under following heads in detail
4.3.1 Constitutional Provision related to Death penalty
4.3.2 Statutory Provision related to Death penalty
4.3.3 Procedural Provision related to Death penalty

4.3.1 Constitutional Provision related to Death penalty

Indian Constitution is said to be an amalgamation of many Constitutions of many
countries around the world such as America Britain, Canada, and France etc. A study
of the constitutions was done from all over the best governances of the world to just
adopt what was the best for the administration of one of the largest democracies of the
world. The constitution of India guarantees Right to life, a principle that has been
lifted from the constitution of America and Japan. The constitution of India
recognizes the right to life as inalienable and indispensable right and they have
evidentiary value. The right to life and liberty has been safeguarded by the
constitutional conventions. The citizen enjoys remarkable degree of personal
liberty 149. The constitution of India guarantees right to life to all its citizens subject to
its deprivation by the procedure established by law 150.

Article 14 of the Indian Constitution provides for “Equality before law and equal
protection of the laws” this article guarantees that no person shall be discriminated
unless there is requirement of such discrimination to achieve equality 151.

The preamble of the Indian Constitution also echo’s the same feeling as shown by the
Article 14 of Indian constitution. Article 21 of the Indian Constitution provide the
fundamental right to life which is right to life with dignity under which no one can be
deprived of his life except under the procedure prescribed by law.

Capital punishment has always been a subject which has time and again been
questioned for being unconstitutional. Although there has been no direct mention
under any clause of Indian Constitution that expressly holds capital punishment to be

149
Allan Gledhill, "The life and liberty in first ten years of republican India", 2. J.I.L.I. 241 at 266
(1959-60)
150
Art. 21 of the Constitution
151
Arts. 14, 15 & 16

81
unconstitutional but some clauses like Art 21 which talks of depriving one of his life
by the procedure established by law can be suggested to be pointing towards the
acceptance of the Constitution for possibility of capital punishment. Although there
are many provision in the Indian Constitution such as preamble, fundamental Rights
and Directive Principles for the state policy on the basis of which the constitutional
validity of death penalty can be questioned. Mainly there can be two aspects of the
constitutionality of capital punishment in India.

Firstly the main point of consideration shall be the question that whether the provision
of capital punishment as such is unconstitutional and such a punishment shall not be
awarded in any case under any circumstances by adopting any procedure of law at
all.

The second question that arises is whether the capital punishment provisions as given
under Indian Penal Code are unconstitutional as they may be violative to the provision
of constitution and the provision of capital punishment as such may not be
unconstitutional.

To discuss these two question first some of the cases that raised question on the
constitutionality of death Penalty shall be discussed. Case of Jagmohan Singh v. State
of UP 152 the basic ground of challenging was that the death penalty is not valid as it
was violative of Article 19 and 21 as the procedure is not provided. According to the
council the procedure prescribed under Criminal Procedure Code was only dealing
with the findings of the guilt and not finally deciding about the sentence of awarding
the death penalty. It was decided by the supreme that the decision on death penalty or
life imprisonment is done in accordance with law based on the circumstances, nature
of crime and the facts on record in the trial. In the given case a five member bench of
the court decided that capital punishment was not under any circumstance violative of
Article 14, 19 and 21 and was therefore constitutionally valid and no further doubts
could ever be raised on the constitutional validity of the procedure adopted in course
of delivering the judgment on capital crimes cases.

152
A.I.R. 1973, SC 947

82
Another case that questioned the validity of death penalty against the article 14 was
Rajendra Prasad v. State of UP 153 under this case giving discretion in the hands of the
judges to decide upon the punishment was violative of Art 14 which condemns
arbitrariness and the second question was on mentioning special reason under sect 354
(3) of Criminal Procedure Code. The decision of this case handed over the discretion
to make the decision in favor of death penalty or life imprisonment was left to the
judges and not to the executive.

This decision of Rajendra Prasad’s case was over ruled by the leading case of Bachan
Singh v. State of Punjab 154 in which the death penalty under section 302 as an
alternative punishment has not been considered as violative of Art. 21. As Art 21 of
Indian constitution itself states that there is a right of the state also to deprive a person
of his life through a manner prescribed by law. And as discussed in the case the death
penalty by hanging was not at all violating Art. 21 as hanging has not been considered
violative of basic features of Constitution.

Another leading case of Deena v. Union of India 155 in which the constitutionality of
Sec 354(5) IPC 1973 was challenged on the ground that the methods used for
execution in the form of hanging was inhuman, barbarous and degrading and
therefore it was violating Article 21. But the decision was based on the report of UK
Royal commission, Report of India held that hanging by the rope was most humane
and least painful method for carrying out death penalty in comparison to other
methods being practiced around the world like electrocution, lethal gas, shooting or
even lethal injection.

In the case of Triveni Ben v. State of Gujarat 156 the fair, reasonable and just procedural
trial was said to be basic requirement of constitutional achievement of Art. 21.

Hence it can be said that the provision of capital punishment provided under various
laws of India are not violating of any constitutional provision granted under Article
14, 19 or 21 as the constitution itself says that a proper fair, just and reasonable
procedure prescribed by law can be used to take away the life of a human being and

153
A.I.R. 1979, SC 916
154
A.I.R. 1980 S.C- 898
155
(1983) 4 SCC 645
156
A.I.R. 1989 SC 142

83
this has been supported by many cases that are decided by the highest court of the
nation.

Article 72 and Article 161 of the Indian constitutional empowers the president of
India and the governor of the states to “grant pardon, reprieve respite or remission of
punishment suspend, remit or commute a sentence of punishment” of an accused who
is convicted of any offence
(a) In all the cases where the punishment or sentence is by court martial
(b) In all the cases where the punishment or sentence in for an offence against any
law relating to matter to which the executive power of the union extends
(c) In all the cases where the sentence is a sentence of death.

Under the constitution once the final decision by the supreme court after all appeals
are turned down the convict can put forward the final mercy petition to the president
known as the clemency.

In the historical case of Madhu Mehta v. Union of India 157 and Tirveni Ben v. State of
Gujarat where there was a delay in final disposal of mercy petition for about nine
years the court was finally directed to commute the punishment of death sentence to
life imprisonment as there was no reasonable justification for this delay hence it was
considered to be violating Art. 21 of India Constitution. This case laid the principle of
speedy trial and disposal of mercy petition.

4.3.2 Statutory Provision related to Death penalty

Indian Penal system is basically governed by the Indian Penal Code 1860 which
provides a number of offences which are punished by death sentence. The offences
are of grave nature and are heinous crime and the person committing such crimes
seems to be of ultimate danger to the society The Capital offences are given under
various statutes of the Nation. The first law that needs to be studied to study the
capital offences is Indian Penal Code 1860. There are basically 11 sections of Indian
Penal Code which award the offender with death penalty.
1. Sec. 121 “treason, for waging war against government of India”.
2. Sec. 132 “Abetment of muting actually committed”.
3. Sec. 194 “Perjury resulting in the conviction and death of an innocent person”.

157
(1989) 4 SCC 62

84
4. Sec. 195 A threatening or inducing any person to give false evidence resulting
in the conviction and death of an innocent person”.
5. Sec 302 “Murder”.
6. Sec 305 “Abetment of a Suicide by a minor, insane person or intoxicated
person”.
7. Sec 307 (2) “Attempted murder by a serving life convict”.
8. Sec 364 “kidnapping for ransom”.
9. Sec 376A “Rape and injury which cause death or leaves the woman is a
persistent vegetative state”.
10. Sec 376 E “Certain repeat offenders in the context of rape”.
11. Sec 396 “Dacoity with murder”

There are some other laws in India that have death penalty as a punishment which can
be listed as follows.
(1) The Air force Act 1950 Sec 34, 37 & 38 (i)
(2) The Andhra Pradesh control of organized crime Act, 2001 Sec 3(1) (1)
(3) The Army Act 1950 sec 34, 37 & 38
(4) The Assam Rifles Act 2006 Sec 21, 24, 25 (1) (a) & 55
(5) The Bombay Prohibition (Gujarat Amendment) Act 2009-Sec 65 A (A)
(6) The Border Security Force Act 1968-Sec 14,17, 18(1)(a) & 46
(7) The Coast Guard Act 1987 Sec 17 & 49
(8) Commission of Sati (Prevention) Act 987 Sec 4 (1)
(9) The Defense of India Act 1971 & Sec 5
(10) The Geneva Convention Act 1960 Sec 3
(11) The Explosive Substances Act 1908 Sec 3 (b)
(12) The Indo-Tibetans Border Police force Act 1992 – Sec 16, 19, 20 (1)(a) & 49
(13) The Karnataka Control of Organized Crime Act 2000 – Sec3(1) (i)
(14) The Maharashtra Control of organized Crime Act 1999(Sec 3(1)(i)
(15) The Narcotics Drug & Psychotropic substance Act 1985-Sec3 1A(i)
(16) The Navy Act 1957 Sec 34, 35, 37, 38, 39, 43, 44, 49(2)(9), 56 (2) and 59
(17) The Petroleum & Minerals Pipelines (Acquisitions of Rights)
(18) The Shastra Seema Bal Act 2007, Sec 16, 19, 20(1)(a) & 49
(19) The Schedule Castes and Scheduled tribe (Prevention of Atrocities) Act 1989
Sec 3(2)(i)

85
(20) The Suppression of unlawful Acts against Safety of Maritime Navigation and
Fixed platform on Continental Shelf Act 2002
(21) The Unlawful Activities Prevention Act 1967. Sec 10 (b)(i)

This list has been provided with the help of India Law Commission Report no. 262 on
Death Penalty. These various laws awards the death penalty for various crimes which
are of grave and heinous nature.

Recently the Rajasthan assembly has passed an historical Criminal Laws (Rajasthan
Amendment) bill 2018 on 10 march 2018 through which 2 section are added to the
Indian Penal Code1860 through which the offence rape or gang rape of a girl below
12 years of age has been made an offence punishable with death penalty. This has
been done to keep a check on the growing number of heinous crimes against girls.
With this initiation Rajasthan has become the second state after Madhya Pradesh to
declare rape with minor as a capital crime

The Supreme Court decided in the case of Bhagwan Das v. State (2011) that honor
killings.” Should be punished with the death penalty the reason behind such decision
by the Court was to send a clear and deterring message to those committing such
crimes. The Court said “it should be made clear to all the persons who are thinking
to perpetuate honor killings should finally understand that the gallows are waiting for
them,”., however, the Law Commission of India did not agreed with the decision of
death sentences awarded in honor killing cases throughout the country making the
precedence of the Supreme Court’s ruling. The Commission recommended that the
death penalty should be used to punish the convicts only under very exceptional and
rare cases the statutes are being regularly updated through amendments as and when
required by the society and this has been evidently visible through the Criminal
Amendment Act2013 that was a result of social outrage after the brutal Nirbhaya rape
case in Delhi in2012 which was followed by the Kothari committee report which
recommended the necessary changes in the law related to rape and its punishment
which were formed and implemented in the form of Criminal Amendment Act2013

4.3.3 Procedural Provision related to Death penalty

The procedure applied for capital offences is same as any other criminal offence first
after a fair & just trial he is awarded with death penalty through proper manner

86
prescribed by law giving him full opportunities of hearing. The decision of death
penalty awarded by the session court needs to be confirmed by the High Court and
finally the supreme court of India needs to hold the decision which can be further sent
for mercy petition to the president, the last resolution is the curative petition which
once turned down is liable for execution of the death penalty on a fixed day and time.
This procedure can be explained as fig.

Figure 34: Stages in Death Sentence Cases

Article 72 and Article 161 of the Indian constitutional empowers the president of
India and the governor of the states to “grant pardon, reprieve respite or remission of
punishment suspend, remit or commute a sentence of punishment” of an accused who
is convicted of any offence
(a) In all the cases where the punishment or sentence is by court martial
(b) In all the cases where the punishment or sentence in for an offence against any
law relating to matter to which the executive power of the union extends
(c) In all the cases where the sentence is a sentence of death.

Under the constitution once the final decision by the supreme court after all appeals
are turned down the convict can put forward the curative petition is filled in the
supreme court of India where all the corners of laws and facts are finally decided
upon and if the writ is decided against the convict then on a decided day he is hanged
by neck till death as the procedure is given in CrPC sec 354(3) giving him death
penalty by a fair peaceful least painful method.

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4.4 Constitutional & Statutory Provision related to Death penalty in Saudi
Arabia
Saudi Arabia is an Islamic state with Traditional Islamic law acting as the basis of the
Criminal Law system of Saudi Arabia. The provisions related to death penalty can be
studied under following heads:
4.4.1 Constitutional provisions related to death penalty
4.4.2 Statutory provisions related to death penalty
4.4.3 Procedural provisions related to death penalty

These can be studied in detail as follows:

4.4.1 Constitutional provisions related to death penalty
The Constitution of Saudi Arabia was adopted in 1992 which has been amended in
2005. The Constitution deals with all the aspects of administration and governance
may those be related to society, economy, criminal or the judicial administration of
the nation. Basically the constitution comprises of the Quran and the Sunnah of the
Prophet Muhammad. Article 7 of the Basic system of the constitution reaffirms
Islamic Sharia as the foundation of the kingdom, According to Article 1 of the
constitution of Saudi Arabia the kingdom of Arab shall be governed by the Quran the
God’s book and Sunnats of His Prophet. The Constitution guarantee that there shall be
no crime in the nation that shall be penalized or punished except under the sharia or
the organizational law as given under Article 38 of the constitution. Only the acts
done subsequent to the enforcement of organizational law shall be punished. Saudi
Constitution also provides for the protection of Human Rights in accordance with the
Islamic Sharia, As already discussed in the previous chapter the criminal law is
governed by the sharia and is categorized into 3 categories of crimes namely 158
(1) Huhud which are the fixed Quranic punishments prescribed for specific crimes.
(2) Qisas which are the retaliatory punishments based on the principle of eye for an
eye.
(3) Tazir it is the general category of the crimes which are defined by the national
regulations and are generally punished by lashing.
These categories of crimes have been discussed in detail in the previous chapter.

158
Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries
in Past and Present. p. 166

88
4.4.2 Statutory provisions related to death penalty
The laws of Saudi Arabia are very strict in handling the crime, the Saudi Court
imposes severe punishments for the offence 159 . Death Penalty is the form of
punishment which is awarded very frequently in Saudi Arabia. The Criminal law
which is based on the Had and Qisas prescribes a long list of crimes which are
punishable with death penalty.
1. Aggravated Murder is the form of murder which includes murder during
robbery or murder involving seclusion. Treachery or any other method to
spread terror among the people. In such cases murder is punished by death
under both Had and Qisas 160.
Any other offence that results in death which may be result of non-intentional
act are punishable by death penalty as Had but probably not as Qisas.
2. A special category of offences that are termed as terrorism have been called as
the corruption on Earth has been punished with death penalty by the Fatwa
issued on August 30, 1988 161. This Fatwa prescribed mandatory death penalty
although its ambit is still unclear.
Any act of terrorism is punished with death penalty even if there is no harm
caused to life of any one.
3. Rape is punished with death penalty under the laws of Saudi Arabia as Had.
Aggravated Rape that may result in death of victim is punished with death
Penalty 162.
4. Robbery or Aggravated robbery is punished by death penalty as Had by most
of the schools 163.
5. Arson and Burglary which do not result in Death are also punished by death
penalty under the Fatwa on Terrorism related activities 164.

159
Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries
in Past and Present. p. 175
160
Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative
Perspective, p. 76-79, 313, Institute of Objective Studies, 1st. ed., 1996; M. Cherif Bassiouni, ed.,
The Islamic Criminal Justice System, p. 203-209.
161
Amnesty Intl., Defying World Trends—Saudi Arabia’s Extensive Use of Capital Punishment, pp.
2-3, MDE 23/015/2001, Nov. 1, 2001
162
Richard Clark, Executions in January 2010, http://www.capitalpunishmentuk.org/jan10.html,
accessed Aug. 19, 2010
163
Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 108-110, American
Trust Publications, 1982
164
http://www.handsoffcain.info/archivio_news/200801.php?iddocumento=10301566&mover=0, Jan.
23, 2008

89
6. Drug Trafficking is a serious offence under The Saudi Arabian laws and under
the Royal Decree no.39 of 2005 drug trafficking, importing, exporting,
manufacturing, growing or circulating drugs are punished by Death
165
Penalty .
7. Adultery or Zina are serious offence for married person as Hadd and punished
with death penalty and unmarried people are punished with only hashes for
adultery 166.
8. Apostasy has been punished with Death Penalty as a Tazir and Hadd both.
9. In Saudi Arabia the sex relation among the people of same sex homosexual,
gays and lesbians act has been treated as serious offenders and is punished by
death penalty. It is taken same as adultery or Zina and there is difference of
opinion on the decisions among the various schools. The Hanbali School treats
the male’s sodomy and carry out death penalty as Hadd and in this the marital
status of the offender does not matter. The lesbians are punished as Tazir
offence under all schools, ultimately the Saudi Jurisprudence is heterodox and
they punish lesbians as Hadd and with death penalty 167.
10. There have been no mention of Treason in the codified law of Saudi Arabia.
According to Amnesty International Treason has been categorized as
corruption on earth and is taken as Tazir i.e. punishment for political crimes
and there is no difference considered between rebellion and corruption on
Earth. Although there is not much of clarity to law and judicial practice and
death penalty as Hadd is prescribed for treason.
11. Sorcery or witchcraft are punished by Death Penalty as Tazir.
12. Saudi Arabian laws take the offenses against the military or nation such as
treason and disloyalty although no recent statutory laws or punishment for
such offences are found.

165
Amnesty Intl., Affront to Justice: Death Penalty in Saudi Arabia, pp. 9-10, MDE 23/027/2008, Oct.
14, 2008
166
Mohamed S. El-Awa, Punishment in Islamic Law: A Comparative Study, p. 14, American Trust
Publications, 1982
167
Tahir Mahmood, et. al., Criminal Law in Islam and the Muslim World: A Comparative
Perspective, p. 67-68

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4.4.3 Procedural provisions related to death penalty
Once a person is convicted of any of the above category of crimes he needs to be
convicted on the bases of 3 ways of proving namely 168.
(1) An uncoerced confession given by the convict himself 169.
(2) Testimony of 2 males as witnesses which has to be testimony by 4 males in
case of adultery. In case of Huhud crimes these testimony needs to be
accompanied by a confession of the convict also. It is important to state here
that the testimony of a females carries half the weightage of a male in sharia
Court while in criminal trials there is no weightage of women’s testimony.
Along with women the testimony of non-Muslim or a testimony by the
Muslim whose doctrines are not considered acceptable are also not counted as
valid testimony 170.
(3) The third way is on oath to affirms or deny may be required. Oath is
considered to be serious issue in Saudi Arabia and if one denies to take an oath
it is considered to be taken as admission of guilt which would ultimately result
in conviction 171.

Saudi Arabia is one of the few countries who still practice Mandatory Death Penalty.
The Penalties may be considered as Hadd or Tazir but any how they have to be
codified as mandatory death penalty case.

Pregnant Women 172 and women with small children 173 may be awarded with death
penalty but they are not executed this is due to the Revised Arab Charter on Human
Rights 2004 which have been ratified by Saudi Arabia. The mentally ill people are
those who are not able to understand the circumstances of the act he is doing and such
people are also there who are in the category of insane i.e. they are not able to control
their emotion and do the act out of control 174. It is the discretion of the court to decide

168
Kritzer, Herbert M. (2002). Legal Systems of the World: A Political, Social, and Cultural
Encyclopedia. p. 1415
169
Kritzer, Herbert M. (2002). Legal Systems of the World: A Political, Social, and Cultural
Encyclopedia. p. 1415
170
Wynbrandt, James; Gerges, Fawaz A. (2010). A Brief History of Saudi Arabia. p. 310
171
Beling, Willard A. (1980). King Faisal and the modernisation of Saudi Arabia. p. 117
172
Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law, p. 56, Intl. Law Inst., 1997
173
Gerald E. Lampe, ed., Justice and Human Rights in Islamic Law, p. 56, Intl. Law Inst., 1997
174
Dr. Haanee bin Abdullah Muhammad Al-Jubair, Cases and Judgments: Applying the Sentence of
Qisaas against a Person with a Psychiatric Disorder, pp. 257-258, Al-Adl Vol. 40

91
whether the person deserves to get the benefit of not being executed by death penalty
on the basis of mental illness.

The most controversial group to be exempted execution is juvenile according to the

sharia’s law traditionally if a person is below 18 years of age at the time of
commission of crime than he can’t be given death penalty to be executed 175. Although
Saudi Arabia is a party to the convention on the Rights of child and time again various
committees have been observing and recommending Saudi Arabia to take care of the
age while awarding death penalty but no such practical steps have been taken by
judiciary and youth up to 16 years to 18 years have been executed at many
circumstances.

There have been not much available record for study at public level from the Saudi
Arabian sites and the research have been conducted with very limited resources by the
researcher some more Aspects on death penalty in Saudi Arabia are studied in the
next chapter.

175
U.N. CRC, Committee on the Rights of the Child, Concluding Observations, paras. 32-33, U.N.
Doc. CRC/C/SAU/CO/2, Mar. 17, 2006

92